The Occupational Safety and Health Appeals Board (Board), acting pursuant to
authority vested in it by the California Labor Code and having granted the petition
for reconsideration filed in the above-entitled matter by the Division Occupational
Safety and Health (the Division), makes the following decision after reconsideration.

JURISDICTION

On February 11, 1999, a non-injury explosion occurred at a work place maintained
by Employer at 10144 Waterman Road, Elk Grove, California (the site). Responding
to a media report about the incident, Robert Senchy, Associate Industrial Hygienist,
for the Division of Occupational Safety and Health (the Division) began inspecting
the site on February 16, 1999.

On August 10, 1999, the Division issued Employer a citation alleging the following
general violations of section 3328(g) [improper tank maintenance causing asphalt
tank explosion]; and section 5157(c)(4) [confined space work done without confined
space program and ventilation] of the occupational safety and health standards
and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal as to the existence of the violations only.

A hearing was held before an Administrative Law Judge (ALJ) of the Board in
Sacramento, California. Stacey Brunner, Consultant, represented Employer. Christopher
P. Grossgart, Attorney, represented the Division.

On October 18, 2000, the ALJ issued a decision holding that the Division did
not establish a violation of section 3328(g) but that the Division did establish
a violation of section 5157(c)(4), and that the cited condition did not bear
a direct and immediate relationship to an employees safety or health,
warranting changing the Item to a Notice in lieu of citation.

EVIDENCE

Employer is owned by The Henry Company, which owns many asphalt plants throughout
the United States. Employer operates a bulk storage facility at Elk Grove, California,
where it receives, stores, re-packages, and sells asphalt. At the plant (the
site), Employer has several large atmospheric tanks2
to store bulk asphalt.

Senchy visited the site on different occasions to investigate the explosion.
On one visit he spotted and photographed the maintenance man (chief millwright
Mark Osborne) exiting Tank 3 via its lower opening or "man-way". The
worker had entered briefly to do some work on a propeller in the tank.

Senchy asked Osborne what was in the tank, and Osborne said there was asphalt
(residue). Senchy observed that the asphalt residue at the bottom of the tank
was predominantly hard, and he saw no evidence that the internal temperature
was other than at atmospheric levels. Senchy asked Osborne if he had done any
monitoring in the tank before entering, and Osborne said he had not. Senchy
followed-up by asking if he had checked for explosive gases and the worker said
"no." At a later point, Senchy asked Tuttle if he had any documentation
showing the tank had been tested before Osborne's entry, and Tuttle answered
in the negative.

Senchy concluded the tank was a permit-required confined space. The tank appeared
to have only one means for employee entry, the bottom man-way through which
Osborne exited. Senchy stuck his head into that entryway, and spotted another
opening at the tank roof. That opening appeared to be only about six inches
in diameter. Tuttle had earlier told him "that he has mineral spirits mixed
in with all the asphalt up to about 25% going throughout the plant." Senchy
"took it to mean" that all the tanks contained mineral spirits added
to the asphalt. Using a material safety data sheet and another document from
a Fed-OSHA database, he concluded that the presence of mineral spirits in the
tank's residue had the potential to create a hazardous atmosphere for the entrant,
ranging from membrane irritation to narcosis. The limited openings in the tank
indicated that forced-air ventilation would be required to render the atmosphere
acceptable for occupancy. He saw no evidence of forced-air ventilation.

Senchy asked Osborne if he knew whether the company had a confined space program,
and Osborne replied no. Senchy later asked Tuttle if Employer had a confined
space program, to which Tuttle replied: "It's not in writing." Senchy
therefore cited Employer for allowing Osborne to enter without first having
a written confined space program. That Osborne had not tested the atmosphere
before entering corroborated the program's absence.

Senchy conceded later that if Employer's position was correct that the tank
only contained straight asphalt, and if Employer had indeed followed a procedure
to air out and cool the tank before entering, he may not have cited Employer
for violating the same safety order. In any event, the condition to which Osborne
was exposed, he admitted, had no direct and immediate relationship to his safety.
He cautioned, however, that even straight asphalt, when heated, emits hydrogen
sulfide (H2S) fumes, which could pose a threat to the safety of an employee
in that atmosphere.

Tuttle testified for Employer that Tank 3 stored only straight asphalt, without
mineral spirits, which was emptied for the work in question. Some tanks employ
mineral spirits to enable asphalt to stay liquefied enough to move. Tank 3,
however, used heating coils to liquefy asphalt, and did not employ mineral spirits
for that purpose. No employees are allowed to enter tanks that have mineral
spirits mixed with the asphalt. Tuttle denied telling Senchy that Tank 3 contained
mineral spirits.

In addition, the tank has two hinged "man-ways" that are 24-32 inches
in diameter. The tanks are 28 feet tall. To someone peeking from the inside,
the man-way at the top would appear smaller, but it is the same size as the
bottom opening through which Osborne exited.

Employer had a program, which was not in writing because Employer did not believe
the tanks it allowed workers to enter constituted permit-required confined spaces.
Asphalt in Tank 3 liquefies at about 180º F. But the temperature is kept
at about 300º F when full. When the tanks are cleaned out, with the heat
coils turned off, a pump is used, which removes all but residue below the sump
pump at the tank's base. Both hatches are opened, and the tanks are aired out
for a four-day minimum, although in winter it only takes 2 days to air out and
cool the inside to ambient temperature. The asphalt residue then turns hard,
such as one would see on an asphalt roof. There is a temperature gauge on the
tanks that gives the internal temperature. During the 4-day cooling period,
the tanks are supposed to be tested for explosive gases and oxygen levels. The
chief millwright is supposed to do the testing. Employer did not document such
testing because it believed it was not necessary.3 Employer follows this procedure
not because it admits the tanks are permit-required confined spaces, but to
make sure it is safe for workers to enter.

Tuttle thought Osborne had tested the tank on the day in question because the
millwright had come to Tuttle's office where the testing equipment is kept,
taken it with him, and came back to report to him (Tuttle) that "everything
looks good." Tuttle himself did not test the tank, and he did not see Osborne
test it. Tuttle did not recall hearing a conversation where Osborne denied testing
it, and if Senchy asked Tuttle if the tank had been tested, he would have said
yes.

John K. Kinast, Environmental Engineer for The Henry Company, was called to
testify for Employer. He corroborated Tuttle's testimony about the absence of
a need for mineral spirits when the storage tank uses heating to liquefy the
asphalt. He opined also that the asphalt's presence, once the temperature is
cooled to an acceptable level, poses no hazard to a worker entering the space.
Since Senchy's inspection, the corporation has instituted a written confined
space program applicable to all tanks, for uniformity and to eliminate human
error and guess work. However, Kinast maintained that entering the tanks under
the circumstances present in Osborne's entry entails no atmospheric hazard.
Therefore, he believed the entry did not trigger the requirement for a written
permit-required confined space program.

ISSUE

Was the violation properly reclassified as a Notice in Lieu of Citation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division filed a petition for reconsideration requesting that the Appeals
Board vacate that portion of the ALJ decision in which the ALJ reclassified
the violation of section 5157(c)(4) [confined work space, work done without
confined space program and ventilation] to a Notice in Lieu of citation.

The Division contends that the ALJ decision is flawed because it
is: (1) not supported by prior Board decisions after reconsiderations; (2) the
ALJ completely ignored Division evidence regarding the health risks posed by
the heating coils in tank 3; and (3) the ALJ ignored the mandates of Carmona
v. Division of Industrial Safety, (1975) 13 Cal.3d 303 which require a liberal
interpretation of Labor Code section 6317 to achieve a safe working environment.

Labor Code section 6317 authorizes the Division to issue a Notice in Lieu of
Citation for violations that: (1) do not have a direct relationship upon the
health or safety of an employee; or (2) do not have an immediate relationship
to the health or safety of an employee, and are of a general or regulatory nature.

In its decision, the ALJ cited the Huffman Logging, Co., Cal/OSHA App.
93-382, Decision After Reconsideration (Nov. 21, 1996) case to support his position
that not only the Division, but also the Appeals Board, has the discretion to
classify a violation as a notice rather than a citation. Though the Huffman
rule was correctly stated, significant factual differences exist between the
Huffman case and the case at hand.

In Huffman Logging, Co., an employee was seriously injured
when he struck a cable cutter with an axe, causing a piece of metal to fly off
of the axe and strike him in the eye. (Huffman Logging, Co., supra, at
p.1.) The employer failed to report the accident to the Division as required.
Accordingly, when it independently learned of the accident, the Division issued
a regulatory citation to the employer under section 342(a). (Id.)

The ALJ in Huffman acknowledged that, by failing to report the serious-injury
accident, the employer had violated section 342(a). Based upon a number of factors,
however, the ALJ and the Board set aside the regulatory citation, finding that
a Notice in Lieu of Citation (Notice) was a more appropriate result. First,
the ALJ and Board found that employers violation neither caused the employees
accident nor affected treatment of his injuries. Accordingly, the violation
had no direct or immediate effect on the health or safety of an employee.

The ALJ and the Board then found that the Division had not properly exercised
its discretion in issuing a regulatory citation as distinguished from a Notice
in Lieu of Citation. That determination was reached after the Division, expressly
asked why a Notice had not been issued, responded that it did not know a Notice
was an option. Since the Division did not appreciate that it had discretion
to exercise, the ALJ reasoned he could not find it was properly exercised. Accordingly,
given all the facts presented, the Board agreed that the ALJ did not abuse his
discretion in ordering the issuance of a Notice.

Against that backdrop, the question presented here is did the Division fail
to exercise or abuse its discretion in issuing a citation rather than a Notice.
The question is not whether the Division would have the discretion to issue
a Notice in Lieu of a Citation rather than a citation. The Division clearly
has that discretion.

The ALJs decision to substitute his judgment for that of the Division
was based upon a number of factors. The ALJ found, and we do not disturb his
determination, that the cited condition did not present a direct or an immediate
threat to the health or safety of an employee. Indeed, as the summary of evidence
states, the compliance officer admitted that in his testimony. Moreover, the
compliance officer testified that if Employers factual assertions were
correct, he might not have issued a citation. The ALJ credited Employers
assertions and the ALJ discounted the reasons the Division gave for classifying
the tank as a permit-required confined space. Having issued a citation based
upon erroneous facts and theories, the ALJ concluded that the Division had not
properly exercised its discretion when it issued a citation rather than a Notice.

The ALJ found a violation based upon his review of the evidence and determination
that there were reasons other than those set forth by the Division for finding
the tank a permit-required confined space and further finding that Employer
did not have the requisite program. Substituting a Notice for a general violation
does not disturb the finding of a violation, although no civil penalty attaches
to a Notice. In addition, if Employer at the same establishment is found to
have violated the same safety order within three years, the newer citation can
be issued as a repeat. In other words, a Notice is a sanction.

Recognizing the factors considered by the ALJ and the fact that a Notice still
constitutes a finding of a violation, the Board concludes that this is not a
case where the judgment of the Appeals Board should substitute for that of the
Division.

Section 334(b) sets forth a definition of general violation as follows:

General Violation  is a violation which is specifically determined
not to be of a serious nature, but has a relationship to occupational safety
and health of employees.

There is nothing in the record before us that would support a conclusion that
the Division did not have the prerogative to issue a citation for a general
violation. The potential for injury when an employer does not have a confined
space program is substantial.

DECISION AFTER RECONSIDERATION

The Board reverses the ALJs decision reducing Citation 1, Item 2 to
a Notice in Lieu of Citation and further assesses a civil penalty of $300 based
upon an established general violation of section 5157(c)(4).

MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: July 1, 2002

1 Unless otherwise specified
all references are to sections of Title 8, California Code of Regulations.2 Section 6755(a) defines "Atmospheric Tank"
as "a storage tank which has been designed to operate at pressures from
atmospheric through 0.5 psig (3.5 KPa)." This is to be distinguished from
fired pressure vessels and boilers, both designed to generate steam
pressure, the former at pressures exceeding 15 psi. See section 753 definitions.3 Employer offered an entry permit for another
tank at Henry Company's Kimberton Pennsylvania plant dated February 2, 1998,
but not for Osborne's entry to the one in question (Exhibits I and J).